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Mahua Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberSuit No. 27 of 1970
Judge
Reported inAIR1971Cal507
ActsCitizenship Act, 1955 - Sections 5 and 9(2); ;Citizenship Rules, 1956 - Rule 30; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 4 - Order 39, Rule 2; ;Foreigners Act
AppellantMahua
RespondentUnion of India (Uoi) and anr.
DispositionPetition dismissed
Cases ReferredMd. Ayub Khan v. Commr. of Police
Excerpt:
- .....petitioner became 18 years of age father's domicile was indian and thus the petitioner became an indian citizen with the coming into the operation of the constitution of india on the 26th january, 1950. the petitioner became an indian citizen under article 5(a) and (c) of the constitution of india.4. the petitioner's case is that the petitioner's parents by long residence in india acquired indian citizenship. the said citizenship was never terminated. in any event the petitioner continued to be indian citizen. the petitioner's father settled down at hasimara in north bengal in the district of jalpaiguri and started business under the name and style of macha brothers. in or about 1953 the said business of his father was converted into a partnership. the father and his four sons.....
Judgment:
ORDER

S.C. Ghose, J.

1. This is an application for an injunction restraining the respondents from instituting any proceeding, taking any action or passing any order against the petitioner under the Foreigners Act, 1946, until the disposal of the suit.

2. The suit is for a declaration that the plaintiff is a citizen of India, permanent injunction restraining the defendants, their servants and agents from treating the plaintiff as a foreigner and costs.

3. The facts leading to the present application are that the petitioner's parents came to India in 1910, to permanently settle in India. According to the petitioner the original domicile of the petitioner's parents were Chinese. The petitioner was born in 1928 in India. In 1946 when the petitioner became 18 years of age father's domicile was Indian and thus the petitioner became an Indian citizen with the coming into the operation of the Constitution of India on the 26th January, 1950. The petitioner became an Indian citizen under Article 5(a) and (c) of the Constitution of India.

4. The petitioner's case is that the petitioner's parents by long residence in India acquired Indian citizenship. The said citizenship was never terminated. In any event the petitioner continued to be Indian citizen. The petitioner's father settled down at Hasimara in North Bengal in the district of Jalpaiguri and started business under the name and style of Macha Brothers. In or about 1953 the said business of his father was converted into a partnership. The father and his four sons including the petitioner were partners of the said business. The petitioner was arrested in Jalpaiguri in January, 1963, and was sent to the Central Internment camp at Deoli, Rajasthan with his wife and two children and was kept confined there for about five years. In or about June 30, 1967, the petitioner was brought to Kamarhatty special Jail and was kept confined there until January 10, 1968. According to the petitioner, from the said special jail, on or about January 31, 1968, the petitioner together with other detenues were brought to the office of the Deputy Commissioner, Security Control, 237, Lower Circular Road, Calcutta, where the petitioner was coerced to sign certain documents. The petitioner signed the said papers under protest while he was being held in Police custody with a view to obtain his release. The said papers were subsequently discovered to be application form under the Foreigners Act, 1946.

5. Thereupon, the petitioner was registered as a foreigner and given a certificate under the Foreigner's Act. The said certificate bears No. 23375/ch dated 1st February, 1968. Prior to his release the petitioner was coerced to sign certain papers also at Hasimara. After his release the petitioner was served with an order to leave India within 60 days. The said time for leaving India was extended from time to time and was for the last time extended until December 28. 1969. The petitioner states that the said registration as a foreigner is illegal and the petitioner continues to be an Indian citizen. In the affidavit-in-opposite filed on behalf of the State of West Bengal, it is denied that the parents of the petitioner were domiciled in India or that the petitioner was domiciled in India when the Constitution of India came into force. Both the father and the mother of the petitioner were Chinese nationals. The father held a Chinese passport bearing No. 1-005783 dated 19th August, 1952. The father held a registration certificate as a Chinese national. The petitioner's mother held identity certificate No. A/O2411 dated 7th October, 1960, issued by the Chinese Consul General in Calcutta and also district registration certificate No. 9218/JPG as a Chinese national. Petitioner's father last entered India on 4-4-1959 and his mother last entered India 18-3-1961. The parents of the petitioner subsequently migrated to Bhutan.

6. The allegation that the petitioner signed the document mentioned in the petition because of coercion or duress has been denied. It is stated that the petitioner approached the Regional Registration Officer Calcutta and stated that he intended to stay in Calcutta and desired registration as a foreigner of Chinese nationality. The petitioner was so registered as a foreigner of Chinese nationality on 1-2-1968. The petitioner also applied for registration as an Indian citizen to the Government of India. The said application was rejected by the Government of India.

7. It is contended by Mr. Dutt that notwithstanding rejection of the said application for being registered as an Indian citizen the petitioner continues to be an Indian citizen. The petitioner was born as an Indian citizen and was an Indian citizen at the commencement of the Constitution of India and continues to be an Indian citizen. The Indian citizenship of the petitioner was never terminated. The fact that the father of the petitioner obtained a Chinese passport in 1952 could not affect the Indian citizenship of the petitioner. Mr. Dutt cited the case of Md. Ayub Khan v. Commr. of Police, Madras, : [1965]2SCR884 wherein it was held that mere obtaining a foreign passport cannot be regarded as conclusive proof of voluntary acquisition of foreign citizenship.

8. Section 9(2) of the Citizenship Act and Rule 30 (2) of the Rules framed thereunder lay down that such enquiry as to whether the petitioner had acquired Chinese citizenship can be made only by the Central Government.

9. It is true that obtaining of passport is not conclusive evidence of acquisition of citizenship. In the instant case all the aforesaid documents including the application made by the applicant for being registered as an Indian Citizen go to show that the applicant chose voluntarily to change his citizenship and acquired the Chinese citizenship and became a Chinese national. The aforesaid documents have been sought to be Impeached by the applicant in this application on the ground that the applicant was compelled to execute the said documents due to coercion, but no particular of any alleged coercion has been stated and as such I am unable to take any notice of the said allegation of coercion : [1951]2SCR548 . The suppression of the fact of obtaining Chinese passport in the petition itself as well as of his application for registration as an Indian Citizen under Section 5 of the Citizenship Act, in my opinion do not entitle the applicant for equitable relief of injunction claimed in the instant application. Section 9 of the Citizenship Act provides as follows:--

'9. Termination of citizenship--(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950, and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India. Provided that nothing in this Sub-section shall apply to a citizen of India who during any war in which India may be engaged, voluntarily acquires the citizenship of another country until the Central Government otherwise directs.

(2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority in such manner and having regard to such rules of evidence as may be prescribed in this behalf.'

10. It has been held that person whose citizenship has ceased to exist can claim no fundamental right. In any event under Sub-section (2) of the said section it is for the Central Government to appoint an authority to decide as to whether the applicant has acquired the citizenship of any other country. Rule 30 of the Rules framed under the Act provides as follows:--

'30. Authority to determine acquisition of Citizenship of another country--(1) If any question arises as to whether, when or how any person has acquired, the citizenship of another country, the Authority to determine such question shall, for the purposes of Section 9(2) be the Central Government.

(2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Sch. III.'

11. Therefore, it is for the authority as contemplated in Sub-section (2) of Section 9 of the Citizenship Act to determine the question as to whether the applicant is an Indian National. This court has no power to so decide : AIR1958All165 . In the instant case the order of expulsion was passed against the applicant on the basis of admitted documents. No prima facie evidence to challenge the validity of the said documents has been placed before me, either in the petition or in the affidavit in reply. The said admitted documents including the said passport and Visa obtained by the applicant show that he had acquired foreign nationality. In any event the only authority before whom he could contest the question as to whether he has lost his Indian Nationality or not is the Central Government under Rule 30 framed under the Act (AIR 1958 Andh Pra 761 at p. 763). The said question cannot be decided by this Court.

12. For all the aforesaid reasons I am of the view that the applicant has failed to make out the case for the relief claimed in the instant application.

13. This application, therefore, must fail and is dismissed with costs.


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